How should a constitutional democracy deal with organized non-state terrorists?

[Professor John] Yoo's analysis went essentially as follows: The law of war does not, and should not, entitle people who deliberately blend in with and attack civilians to the privileges of lawful combatants. But the ordinary criminal justice system--utilizing civilian jurors and the full panoply of procedural rights--is ill-suited to deal with international terrorists. Accordingly, the President in proposing, and Congress in passing, the MCA were right to rely on military commissions.

Although Yoo asked the right question, he--and the politicians with whom he agrees--framed the debate as a false choice. For one thing, it is hardly obvious that the criminal justice system is, in fact, inadequate for trying accused terrorists. The Justice Department has a perfect record of convicting al Qaeda and affiliated terrorists, and before 9/11, it did not occur to anyone that the procedures developed by the courts for handling classified information and security risks were inadequate. Terrorists, such as those who bombed the World Trade Center in 1993, had been tried, and convicted, in civilian federal courts before. Even after 9/11, the government obtained a conviction of and life sentence for Zacarias Moussaoui in civilian court.

To be sure, the federal courts undoubtedly lack the capacity to try everybody that the United States detains in every military conflict around the world, but no one has suggested that all such people would be tried. Even now, five years into the conflicts, the Administration has announced plans to try only a tiny handful of the people it has detained. The vast majority have either been released, or are being held indefinitely-- either pending the location of a suitable country for deportation, or while military conflict persists. No one has explained why the federal courts could not handle one or two dozen trials of those persons accused of offenses.

Moreover, even if one concludes that civilian courts are inappropriate for terrorism cases, it does not follow that one must rely on the sorts of special military commissions established by the MCA. As the Supreme Court explained in its June decision in Hamdan v. Rumsfeld trial by court martial under the Uniform Code of Military Justice (UCMJ) would certainly comply with international law and the Constitution....

The military commissions established by the MCA differ from courts martial in a number of key respects. Most conspicuously, the military commissions will use relaxed rules concerning the admission of evidence, including some otherwise excludable hearsay and evidence obtained by coercion, and except for a limited list of procedural guarantees, the MCA requires the military commissions to comply with the rules used by courts martial only to the extent that the Secretary of Defense considers such rules to be practicable and consistent with security considerations.

These are not mere technical matters. The procedural protections of courts martial that the military commissions discard play an important role in preventing and remedying erroneous convictions of innocent people. Yet here too, proponents of military commissions have offered no persuasive justification for abandoning courts martial.

The move from courts martial to military commissions imposes serious costs on the accused while yielding marginal if any benefits for society. As Justice Kennedy noted in his concurrence in Hamdan, courts martial are fully capable of trying cases involving terrorism suspects without compromising national security: After all, they have long-established procedures for handling the use of classified information, including admitting into evidence a declassified summary of the contents of the classified report.

In his majority opinion in Hamdan, Justice Stevens made plain that historically, military commissions were justified by necessity. Given the exigencies of war, it is not always possible to convene a civilian court or a full court martial. In the MCA, Congress has authorized military commissions without any good reason for concluding that civilian courts or courts martial could not do the job at no greater risk to national security....

Although torture and related maltreatment remain federal crimes under the MCA, alien victims of torture who are declared by the executive to be enemy combatants have no ability to bring their claims to court. Section 7 of the MCA eliminates the right of habeas corpus and the right to bring a petition challenging "any other action [by] the United States or its agents relating to any aspect of the detention, transfer, treatment, trial or conditions of confinement of" such persons.

Under the terms of the MCA, then, the government could declare a permanent resident alien--including someone who has been residing lawfully in the United States for decades--to be an enemy combatant, and lock him up, potentially forever. That alien--who could be your neighbor--would never have an opportunity to challenge his detention or treatment in a U.S. court.

To be sure, if the government provides someone declared to be an enemy combatant with a combatant status review tribunal (CSRT), then the DTA authorizes judicial review of that determination. And the MCA does amend the DTA for the better in one important respect: Whereas the DTA only authorized civilian judicial review of CSRT determinations for detainees at Guantanamo, under the MCA, a person held by the United States pursuant to a CSRT anywhere in the world can appeal the CSRT's ruling to a civilian federal court. But, there is no statutory requirement that the government ever utilize a CSRT-and absent a CSRT ruling, there is no access to civilian court.

Thus, under the terms of the DTA as amended by the MCA, there would be no access to a civilian court whatsoever, even if the detainee were held within the United States, so long as the government determined that he or she were an unlawful enemy combatant by some means other than using a CSRT. And at least to that extent, the MCA should be judged unconstitutional as a de facto suspension of the privilege of the writ of habeas corpus. Article I, Section 9 permits Congress to suspend the privilege of the writ of habeas corpus "when in Cases of Rebellion or Invasion the public Safety may require it." Public safety may require that the writ be suspended in an active war zone where courts cannot function. But the DTA and MCA apply everywhere.

In the public debate surrounding the treatment of detainees, and in the email I receive from time to time from incensed readers, proponents of the Administration's position frequently question the application of norms of due process to terrorists who themselves engage in barbaric acts. Humane treatment for people who deliberately behead and blow up innocent civilians will not, they argue, lead to better treatment of our own personnel.

There is something to this argument but it ultimately misses three important points. First, we observe norms of humane treatment in part because of who we are. Just as we do not permit cruel and unusual punishment of domestic prisoners--even those who have committed sadistic crimes--so we should not commit similar acts against people from foreign lands.

Second, the reciprocity argument conceives our national interest far too narrowly. The reason to abide by the Geneva Conventions with respect to al Qaeda captives is not because we believe that al Qaeda will therefore reciprocate by treating our personnel well. The reason is that people who are not now our active enemies will be more likely to take up the jihadi cause against us if we confirm their view that the United States aims to persecute Muslims. Even where there is no hope for reciprocal treatment of Americans, disregard of international standards for treatment of detainees undermines our security by losing hearts and minds throughout the world. As the government's own recently declassified National Intelligence Estimate confirms, this is a very real phenomenon.

Third, due process rights are not rights for terrorists but for people accused of being terrorists. Despite Administration claims that Guantanamo detainees are "the worst of the worst," the government has already admitted that numerous people it formerly held in fact posed no great danger. Some of these--like Yaser Hamdi, the subject of the Supreme Court case Hamdi v. Rumsfeld, or the Tipton Three, the subject of the docudrama "The Road to Guantanamo"--have simply been sent back to their home countries, or other places abroad.

In the fog of war, mistakes are inevitable. But once the dust settles, the least we can do is utilize procedures designed to correct those mistakes. Unfortunately, the MCA would only exacerbate them. [Link]